Tuesday, November 11, 2008

Questions, Answers, Preparation

Our Attorney General, Martha Coakley, learned yesterday that arguing before the United States Supreme Court is really, really hard. The issue in the case is whether the government needs to make the person who prepares a lab report in a criminal case available for cross examination. That, it seems, is the way they do it in California.

So Justice Kennedy asked how that's been working out in the Golden State. Good question, right? Especially when one of the arguments against requiring live testimony is that it wouldn't be workable.

Attorney General Coakley didn't have an answer to Justice Kennedy's question.

One of the keys to oral argument in appellate courts is coming up with an exhaustive list of potential questions from the judges and, of course, answers to those questions that help (or at least don't hurt) your case. A good way of filling in gaps in your list is to have a moot court. Or, if you're arguing before the United States Supreme Court, a *bunch* of moot courts.

Did that just not happen here? Or did the moot court judges not think of this question?

5 comments:

Not Whitey Bulger said...

Martha seems more like a political climber than anything else. Not that she's an exception in Massachusetts.

Anonymous said...

Anyone who has ever done an oral argument can tell you what a difficult task that is. All kinds of questions come your way. You need to be an expert on virtually every imaginable point of law -- then some judge asks a question like the one above which is just not on point. Who cares how it is "working out" to have live witnesses in California testify about testing, probably quite well -- the entire point is how the absence of such witnesses works out. See, the question asked was beside the point. Oh, and by the way, if Mass. loses this case it will be extremely costly to the taxpayers with no corresponding benefit.
Say what you want about AG Coakley and her political ambitions, she is an excellent attorney.

Terry Klein said...

The Attorney General is/was a fantastic trial lawyer. No question about that. And her political ambitions are not really relevant (I'd support her against most, maybe all, of those being floated for Sen. Kerry's seat). Any sane attorney is going to leap at the opportunity to argue in the USSC. Uninformed guess: she knew that doing this was politically dangerous but she couldn't pass up the opportunity. Totally understandable.

The point, though, is that the Commonwealth tried to win this appeal by claiming that requiring live testimony would be unworkable. The question of whether it works in California is a good one and a fair one. Whoever was in charge of the Attorney General's preparation for the hearing, especially in light of the fact that she was on a big stage at a very important point in her political career, probably owes her an apology.

Anonymous said...

It seems like a justice asking Califonia does it why can't Massachusetts would be number one on the list. And then to get completely blindsided by it, egads.

Anonymous said...

Terry, after reading your response to my earlier comment, I read the transcript of the oral argument. I would add that her error in representing that California signed on to the amicus breif was far more remarkable -- and squarely on her shoulders. It's up to counsel to have a firm grasp of the record. She also got caught up in an argument about acuracy/reliability rather than sticking to the script -- a discussion of business records/non-testimonial evidence. On the plus side, defense counsel seemed to give the whole case away in his rebuttal. (I say on the plus side because truly this is an expensive accomodation with little benefit).